適法節次에 있어서의 適正性 要素 및 分析方法

다국어 초록 (Multilingual Abstract)

The issue of 'due' in due process of law was not much differentiated from the one of benefit of the law to be protected (life, freedom, and property) prior to 1970s even in case of the USA. The 'due' in due process of law was simply recognized as equal as 'justice' or 'legitimacy' which was not clearly disclosed. However, with a start of the issue that it could be possible to see the opportunity to receive a benefit for public welfare as a right, each level of court in the USA activated the analysis on a so-called appropriateness to confirm the details on due process of law. Unlike this, it is hard to find the discussion on appropriateness relating to due process of law under our present Constitutional Law, although it may be due to the fact that the researcher has little knowledge. By nature, the theory on justice is a matter which should be dealt with as an issue of philosophy of law.
Nevertheless, to prepare a general minimum postulate in respect of an appropriateness in due process of law under the current constitutional law should be an urgent task. It is because the principle of due process of law as a practical norm to be applied in conflict between all the governmental authority and private interest is a legal norm which is applied in constitutional dispute to be an issue at present or to be anticipated by the Constitutional Court in particular. Moreover, the judgment on appropriateness in the process of its application also has the risk of damaging a legal stability by way of an abuse caused by a vagueness in its standard.
The appropriateness in due process of law is divided into a substantial appropriateness and a procedural appropriateness. The former means an appropriateness required in case a legislation to regulate a substantial right relation is a right-limiting one or an obligation-imposing one. The latter means an appropriateness required in case a legislation stipulating a definitive procedure to realize rights and interests regulates a procedural right, etc.
In respect of an element of appropriateness in due process of law, the appropriateness means a justice. The thing that can be discussed under the Constitutional Law as an element of appropriateness to realize a justice is limited as a prescription of a fundamental principle and the individual fundamental right under the Constitutional Law. However, as is previously described in the theory on object to be protected in due process of law, since the provisions of individual fundamental right such as life, freedom, and property, etc. are the object to be protected through a due process of law, they can be distinguished from an element of appropriateness. In such a context, an element of appropriateness under the present Constitutional Law can be limited to a fundamental principle. In addition, although the method to analyze an appropriateness is divided into the methodology to substantive approach and the one to instrumental approach, a substantive value is inherent in a notification and hearing pursuant to the methodology to substantive approach. In particular, with regard to the start and form of hearing, the hearing should be started without any burden of cost or balancing of interests in accordance with the burden of cost. And the form of hearing should be made in a confrontation manner.

참고문헌 (Reference)

• 1 Mashaw, "행정절차의 적정성과 보호법익" (374) : 1987
• 2 김상겸, "생명과 사형제도" 한국헌법학회 10 (10): 2004
• 3 김영옥, "사형제도에 관한 판례연구" 한국형사법학회 1995
• 4 심헌섭, "분석과 비판의 법철학" 법문사 2001
• 5 39 Cornell L, "THE ROLE OF DUE PROCESS IN AMERICAN CONSTITUTIONAL LAW" 1953-1954
• 6 Corwin, "Due Process of Law before the Civil War" 24-, 1911
• 7 Leonard Kreynin, "BREACH OF CONTRACTS AS A DUE PROCESS VIOLATION CAN THE CONSTITUTION BE A FONT OF CONTRACT LAW?" 90-, 1990
• 8 Graham, "'Conspiracy Theory' of the Fourteenth Amendment" 1938